APPLICATION BY MR DONALD MCDONALD SEEKING REVIEW OF A REVIEWABLE DECISION OF THE

DEPARTMENT OF DEFENCE

2

 

DECISION UNDER REVIEW The decision of Naval Personnel Services (NPS) of the Department of Defence on 2 September 1993 that Mr Donald John McDonald is not eligible for the Republic of Vietnam Campaign Medal. DECISION OF THE TRIBUNAL The decision of the Department of Defence that Mr Donald McDonald is not eligible for the award of the Republic of Vietnam Campaign Medal is affirmed. DATE OF DECISION 28 June 2012. THE TRIBUNAL For the purpose of this appeal the Tribunal was constituted by: Mr John Jones AM

3

 

REASONS FOR DECISION Introduction 1. The Defence Honours and Awards Appeals Tribunal (the Tribunal) is established under the Defence Act 1903. Its functions are set out in Section 110UA of the Act. Those functions include reviewing a decision refusing to recommend a person or group of persons for a defence award. After conducting a review, the Tribunal may make a decision affirming the original decision, substituting a new decision or referring the matter to a person for reconsideration. 2. In August 1993, Mr McDonald, who was a member of the Royal Australian Navy (RAN) from 10 October 1965 until 6 March 1979, applied to the Naval Personnel Services (NPS) of the Department of Defence (Defence) for the award of the Republic of Vietnam Campaign Medal (RVCM). In response to this application, Defence determined that Mr McDonald did not meet the eligibility criteria for the award of the RVCM because he had not served for the period prescribed in the applicable medal regulations. The decision in regard to Mr McDonald’s application for the RVCM was notified to him in a letter from NPS dated 2 September 1993. 3. On 12 August 2011, Mr McDonald wrote by email to the Tribunal requesting review of the decision of Defence. In his application to the Tribunal, Mr McDonald stated that his service as a crew member of HMAS Sydney from 11 November 1966 and 16 July 1967 makes him eligible for the RVCM. Mr McDonald believes that Defence erred in making the decision because they did not properly apply the eligibility criteria relating to the Medal. 4. The Tribunal’s role is to conduct a merits review of Defence’s decision, to consider Mr McDonald’s application for the medal afresh and to make a decision as to his eligibility for the RVCM. The Defence honours and awards which the Tribunal can review are set out in the Defence Force Amendment Regulations 2011. 5. The Tribunal had before it Mr McDonald’s application for review as well as the correspondence which took place between Mr McDonald and the Directorate of Honours and Awards leading to his application. The Tribunal also had before it the written submission from Defence dated 29 September 2011, which was provided to Mr McDonald by the Tribunal. Mr McDonald responded by email to the Defence submission on 18 October 2011. 6. On 16 December 2011 the Tribunal commenced its review by contacting Mr McDonald by email. This initial contact was followed by a telephone conversation with Mr McDonald on 20 December 2011. Further communication between the Tribunal and Mr McDonald, by exchange of email and by telephone continued until 5 June 2012.

4

 

Mr McDonald has frequently sent additional documentation to the Tribunal to supplement his original submission. Defence Records of Mr McDonald’s Service 7. Defence records show that Mr McDonald served in the RAN from

10 October 1965 until 6 March 1979 and that he was posted to the fast troop transport HMAS Sydney from 11 November 1966 until 16 July 1967. HMAS Sydney made 3 trips to Vietnam while Mr McDonald was posted to the ship.

8. Mr McDonald served in Vietnam for a total of three days.

Summary of the Arguments of Mr McDonald

9. Mr McDonald told the Tribunal that he believes that he is eligible for the RVCM because he served on HMAS Sydney for a period in excess of six months and HMAS Sydney ‘contributed direct combat support to the RVNAF in their struggle against an armed enemy’, thereby satisfying the requirement of the amended Article 3 of the Vietnamese Directive. 10. Mr McDonald also argues that the Australian Government materially changed the criteria which were set out in the Vietnamese Directive by including a requirement that Australian service personnel be allotted for special service in order to qualify for the medal and that this change was made without the approval of Australia’s Head of State. Summary of the Arguments of Defence 11. Defence argues that Mr McDonald is not eligible for the RVCM because he did not serve for a sufficient period of six months in the operational area of Vietnam and that none of the criteria from exemption of that requirement apply to his case. 12. Defence argues that the amendment to the criteria to include areas outside Vietnam was made at the request of the United States Government and only applied to those who rendered qualifying service within the area of operation – that is members of the United States Seventh Fleet and the United States Air Force. CONSIDERATION BY THE TRIBUNAL The Republic of Vietnam Campaign Medal 13. The RVCM was created in 1964 by the then Government of the Republic of Vietnam.

5

 

14. The Directive (HT. 655 – 430 dated 1 September 1965) of the Government of the Republic of Vietnam, which prescribed the “eligibilities, authorities, and procedures for awarding Campaign Medal”, stipulated “12 months service in the field during war time” for members of the Republic of Vietnam Armed Forces (RVNAF) in Article 1. A copy of the Directive is at Appendix 1. 15. The Government of the Republic of Vietnam offered the campaign medal to the countries which contributed forces to the Free World Military Forces who participated in the Vietnam War. 16. Article 3 of the Directive set the length of service requirement for allied service personnel at six months rather than the 12 months prescribed for members of the RVNAF. Article 3 reads: Allied soldiers assigned to the Republic of Vietnam after 6 months in war time with mission to assist the Vietnamese Government and the RVNAF to fight against armed enemies, are eligible for Campaign Medal decorations; they would be awarded with Campaign Medal under conditions anticipated in Article 2 of this Directive. 17. Article 2 of the Directive detailed circumstances which would provide grounds for exemption from the 12 month requirement for RVNAF members. They were described as: WIA (wounded in action) Captured in action by enemies or missing while performing his missions, but released later, or an escape has taken place. KIA or die while performing a mission entrusted. 18. These three grounds for exemption, and no others, were retained in the Australian regulations for the award of the medal (Australian Naval Order (ANO) 516/70 and Military Board Instruction (MBI) 102-4 of 23 December 1968 refer). 19. Article 3 was amended by the Government of the Republic of Vietnam on 22 March 1966 to read: Foreign military personnel serving in South Vietnam for six months during wartime and those serving outside the geographic limits of South Vietnam and contributing direct combat support to the RVNAF for six months in their struggle against an armed enemy will also be eligible for the award of the Campaign Medal. (emphasis added)

20. In June 1966 Her Majesty the Queen granted approval for Australian Defence Force members to accept and wear the RVCM. The Australian Government accepted the qualifying criteria specified by the Government of the Republic of Vietnam in its Directive HT. 655 – 430 dated 1 September 1965. These criteria were included in

6

 

paragraph 5 of a memorandum entitled ‘Vietnamese Campaign Medal’ of 16 September 1966 from the Secretary of the Department of Defence to the Secretaries of the Departments of the Navy, Army and Air Force. A copy of the Memorandum is at Appendix 2.

21. In the memorandum it was explained that the amendment to Article 3 (paragraph 13 above refers) of the Vietnamese Directive dated 1 September 1965 “was specifically requested by the United States authorities to cover those United States servicemen in the Seventh Fleet, Thailand and Guam, who are participating in the present conflict. The United States interpretation of this amendment is that it covers all members of the Seventh Fleet serving in waters off the coast of Vietnam, as well as the aircrews of aircraft operating out of Thailand and Guam. The Americans do not interpret the amendment to cover ground support staff in Thailand and Guam.”

22. The memorandum went on to say “Our interpretation is the same as that of the United States. At present no Australians serving with Australian units outside the Vietnamese theatre would be eligible for the award.”

Consideration of the Arguments and Evidence Presented

23. Mr McDonald submitted many documents to the Tribunal for consideration. 18 documents accompanied his initial submission and he has subsequently sent a further seven submissions including 12 additional documents.

24. Much of the documentation presented by Mr McDonald was correspondence from a number of ministers serving the Defence Department, both as Minister for Defence (the Honourable Kim Beazley MP) as well as supporting ministers (the Honourable Bruce Scott MP, the Honourable Gary Punch MP, the Honourable Ros Kelly MP and the Honourable Bronwyn Bishop MP). Although most of this correspondence was not addressed directly to Mr McDonald, much of it does relate directly to the service of sailors who served in HMAS Sydney during the period of the Vietnam War and is therefore relevant to Mr McDonald’s own situation.

25. The Tribunal notes that in every instance the ministerial correspondence states clearly that service in HMAS Sydney did not lead to eligibility for either the Vietnam Medal or the RVCM. In several of these items of correspondence it is explicitly stated that HMAS Sydney was not involved in combat operations and provided logistic support and not combat support.

7

 

26. Mr McDonald submitted a paper1, which is not dated but is apparently written by Mr Frederick McLeod-Dryden, which declares an intent “…to prove that HMAS Sydney III provided continuous service in direct support of the Republic of Vietnam Armed Forces whilst in Australia between trips to Vietnam and therefore fulfilling the criteria of the Vietnam Campaign Medal. The South Vietnam Government requirement that ‘Those serving outside the geographic limits of South Vietnam and contributing direct combat support to the RNVAF for six months’ also qualifies HMAS Sydney for the Vietnam Campaign Medal”.

27. The paper briefly describes the whereabouts and activities of HMAS Sydney from May 1965 until November 1972. In relation to the period of Mr McDonald’s service with HMAS Sydney, which is from November 1966 until July 1967, the paper notes that the ship returned from a trip to Vietnam in June of 1966. The ship then participated in training and exercises in Australia and Australian waters until April 1967. On 8 April 1967 HMAS Sydney proceeded to Vietnam, arriving back in Sydney on 12 May 1967 and then departed Brisbane on 19 May for a second trip to Vietnam arriving back in Brisbane on 14 June 1967 after which the ship went into refit until November 1967.

28. It is agreed that HMAS Sydney was in the Vietnam operational area on each of three days within the period in which Mr McDonald served on the ship.

29. Nevertheless, Mr McLeod-Dryden concludes that, “There can be no dispute that HMAS Sydney III’s primary role during the period 1965 to 1973 was dedicated to providing continual support to the South Vietnamese Government. Based on the proceeding (sic) evidence, it can therefore be seen that HMAS Sydney III was either in Vietnamese waters or engaged in exercises in readiness for the majority of the calendar year between 1965 and 1973”.

CONCLUSIONS

30. The Tribunal does not share Mr McLeod-Dryden’s certainty that HMAS Sydney contributed ‘direct combat support’ to the Vietnamese armed forces.

31. The Tribunal is satisfied that the circumstances of Mr McDonald’s service do not meet the criteria for eligibility for the RVCM. He did not serve in Vietnam for the prescribed six month period, nor did he contribute direct combat support to the RVNAF for a six month period while serving outside the geographic limits of South Vietnam.

                                                            

1 This paper by Frederick McLeod-Dryden was attached to a submission dated 16 May 2012 from Mr McDonald to the Tribunal. Mr McDonald has explained that Mr McLeod-Dryden was the founding President of the HMAS SYDNEY and Vietnam Logistical Support Veterans Association.

 

8

 

None of the specified conditions for exemption from the six month requirement apply to his case.

DECISION 32. The decision of the Department of Defence that Mr McDonald is not eligible for the Republic of Vietnam Campaign Medal is affirmed.

APPENDIX 1 - Directive HT. 655 – 430 dated 1 September 1965. The Tribunal’s Secretariat has confirmed that this document has been declassified.  

9

 

 

10

 

 

11

 

 

12

 

Appendix 2 – Memorandum from the Secretary of the Department of Defence dated 16 September 1965  

 

13